FOIL AO 19713
March 6, 2019
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
I am writing in response to your request for an advisory opinion regarding the rights of access conferred by the Freedom of Information Law (FOIL) to a Statement of Financial Condition (Statement). The Statement was submitted to your client, an agency as that term is defined by FOIL, by a corporation, in response to a Request for Qualifications from the agency.
You state in your letter that approximately eight years ago, your client (Agency) "issued a Request for Qualifications (RFQ) as a basis for the selection of a team to develop and lease a particular property." In response to this RFQ, the Agency received numerous responses, including a response from a corporation whose principal is a "highly prominent public figure, whose financial affairs have been a matter of intense public interest and scrutiny." Included in the response is the principal’s Statement of Financial Condition which "provides a breakdown of the principal’s net worth, assets, and liabilities (many of which were listed as real and operating properties)."
In response to my e-mail inquiry, you advised that your client is not a state agency as that term is defined by §87(4)(b) of FOIL or §92(1) of the Personal Privacy Protection Law.
Based on our telephone conversation, it is my understanding that this Statement is that of the principal as a natural person, as opposed to a Statement of the corporation’s financial condition, or a statement of the principal as a corporate entity, and that the natural person is a public (government) employee and/or official.
The Agency recently received a FOIL request for records which would include a copy of the Statement. You have posed several questions regarding rights of access under FOIL to this record. Before addressing each inquiry, I point out that the grounds for denial set forth in FOIL are permissive. Even when an agency has the authority to deny access, i.e., based on the possibility that disclosure would constitute an unwarranted invasion of personal privacy, the Court of Appeals, the state’s highest court, has held that it is not required to do so. See Capital Newspapers v. Burns, 67 NY2d 562, 567. As such, even if the Agency has the authority to deny access to the Statement pursuant to FOIL, it is not prohibited from disclosing the record. An agency may only be prohibited from disclosing certain types of records when a separate state or federal statute exists that governs the disclosure of those records.
Your first set of inquiries relate to the ability of the Agency to deny access to the Statement on the ground that disclosure would constitute an unwarranted invasion of personal privacy (§87(2)(b) of FOIL). If the Statement relates to the principal as a natural person, in our opinion, disclosure could generally be considered "disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it" (§89(2)(b)(iv) and "information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." (§89(2)(b)(v)) Although I am not aware of the "work of the agency" in this situation, because you have advised that the information provided by the subject of records was in response to an RFQ, and not, for example, as part of a licensing or agency oversight process, it is assumed that the information is "not relevant" to the work of the agency.
The Court of Appeals, in Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 580 NYS2d 715 (1992), held that "[o]nce it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required. It is enough that the Legislature has determined to classify the release of such information as an unwarranted invasion of personal privacy (see, Matter of Federation of N. Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d, at 97, supra)." In our view, there is no "need to balance the competing public and private interests" involving disclosure of the Statement (New York Times Company v. City of New York Fire Department, 4 NY3d 477, 796 NYS2d 302 (2005)).
However, when information contained in a record is already in the public domain, an agency’s ability to deny access to the record in its entirety diminishes. You cited the example set forth in FOIL regarding records relating to the right, title or interest in real property. If there is information contained in the Statement that is otherwise publicly available as required by Real Property Tax Law §516 (assessment rolls), it would be difficult to justify a denial of access on personal privacy grounds. In addition, if the principal is a public official required to file a financial disclosure form, that form, to at least some extent depending on the jurisdiction, would be required to be made available to the public. In our view, it would be a challenge for the Agency to meet its burden of proving that disclosure of the Statement, in its entirety, would constitute an unwarranted invasion of personal privacy when information contained in portions of the record are already in the public domain.
You ask whether "staleness of a record" diminishes the public interest in understanding the operations of a government agency or the privacy interest of the subject of the records. In my view, whether the age of a record is a significant factor in determining the value to the public in understanding the operations of a government agency depends on the nature of the record. In this instance, it does not appear that this record, regardless of age, would add or detract in any significant way to the public’s understanding of the operations of a government agency. However, in our opinion, the older the record, the less likely it is that disclosure would cause any of the harms envisioned by the statute. As time passes, circumstances change and the information contained in a Statement of Financial Condition may no longer be representative of the subject’s current financial condition. As such, disclosure may no longer constitute an unwarranted invasion of personal privacy.
You also ask whether the provision of FOIL that states that disclosure shall not constitute an unwarranted invasion of personal privacy "when the person to whom a record pertains consents in writing to disclosure" would be applicable based on the principal's signature to an Agreement which states, in part, that any information provided to the Agency "was not given in confidence." In my view, it is clear that the subject of the record had sufficient notice that the records submitted as part of the RFQ were not confidential and that public disclosure was possible. However, in my opinion, the signature on the agreement would not constitute a consent to disclosure, particularly when the principal also requested that the records not be disclosed (although not on personal privacy grounds).
With regard to your inquiry as to whether the Statement could be withheld on the ground that disclosure would "impair present or imminent contract awards" (§87(2)(c)) or would cause "substantial injury to the competitive position of" the principal (§87(2)(d)), in my opinion, the Agency would not be able to meet its burden of proof in justifying non-disclosure on these grounds.
From our perspective, the key word in §87(2)(c) is "impair," and the question under that provision involves whether or the extent to which disclosure would "impair" the contracting process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers. As we understand its application, §87(2)(c) generally encompasses situations in which an agency or a party to negotiations maintains records that have not been made available to others. For example, if an agency seeking bids or proposals has received a number of bids, but the deadline for their submission has not been reached, premature disclosure of those bids to another possible submitter might provide that person or firm with an unfair advantage vis-a-vis those who already submitted bids. Further, disclosure of the identities of bidders or the number of bidders might enable another potential bidder to tailor a bid in a manner that provides him with an unfair advantage in the bidding process. In such a situation, harm or "impairment" would likely be the result, and the records could justifiably be denied.
It is my understanding that the subject of the records did not complete the RFP process and the contract was awarded to a different developer. As such, it would not be possible for disclosure of the records in question to "impair" the contracting process of the Agency with regard to this project.
You also indicate that the corporation "did not provide documentation or further information in support of its assertion that it would suffer substantial injury as a result of disclosure." Without more information justifying a denial of access, in our opinion, the Agency would be unable to meet its burden of proof.
I hope that I have been of assistance.